LexHINDUSTAN LEVER LTD. versus COLGATE PALMOLIVE (I) LTD. AND ANR.
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A HINDUSTAN LEVER LTD. v. COLGATE PALMOLIVE (I) LTD. AND ANR. DECEMBER 17, 1997 B [SUHAS C. SEN AND M. JAGANNADHA RAO, JJ.] Monopolies and Restrictive Trade Practices Act, 1969 : Sections 55, 12-A, 10, 36-A(l)(viii) & (x) and 36-B-Appeal under C Sectio11 55-lnteiference with interim order-Scope of-Appellant claiming 102% anti-bacterial superiOJity over the leading toothpaste by way of issuing adve1tisement via media particularly TV-Respondent fili11g complai11t under Sections 10, 36-A(l)(viii) & (x) a11d 36-B along with an application under sectio11 12-A for interim relief-Commission found the word "leading tooth- paste" to be a reference to the respondent's toothpaste-As to the veracity of D the appellant's claim of 102% superiority both the parties relied on the conflicting opinions of experts-commission in order to find the veracity of claim of the ·appellant, directing the panel of expe1ts to re-examine the claim--011e expert to be nomi11ated by each party and the third being the nomi11ee of the Commission to f onn the panel of experts--l'arties agreeing E after the heari11g--Commissio11 by way of an interim order directi11g the appellant to refrain from claimi11g in its advertisement directly or indirectly a11y bacterial superiority till the claim was fully established-Held, order- cannot be inteifered with i11 an appeal under Section 55 as the relief was totally discretionary. F Appellant issued adv1!rtisement through media and TV that the G toothpaste manufactured by the appellant was anti- bacterial superior by 102% over the leading toothpaste. The action of the appellant was chal- lenged by the respondent by way of filing a Complaint under Section 10, 36-A(l)(viii) & (x) and 36-B of the MRTP Act. An application under Section 12-A was also filed by the respondent for interim relief. As to veracity or otherwise of the appellanfs claim, both the parties relied upon conflicting opinions of expert. After hearing the matter, the Commission noticed that the appellant's claim of 102% anti-bacterial superiority re- quired a highly scientific approach and that the same should be decided by a panel of experts comprising one nominee of each party and a third H nominee of the Commission. An order was passed with the consent of the 572 HINDUSTAN LEVER LTD. v. COLGATE PALMOLIVE (I) LTD. 573 parties. The Commission also examined the question of balance of con- A venience and on facts found that the appellant's advertisement was likely to influence the consumer as the data submitted by respondent showed a continuous reduction in its sale of toothpaste, the Commission by an interim injunction restrained the appellant from claiming in its advertise- ment directly or indirectly any bacterial superiority till the claim was fully established. It was also observed by the Commission that such an injunc- tion order would protect the interest of the consumers. Hence this appeal. Before this Court, the appellant relying on Section 36-A(l)(viii), contendt'd that unless it was "proved" by the complainant that the appel- B lant had :give false or misleading facts disparaging the goods, services or C trade" of the complainant, it could not be said, even prim a f acie, that the appellant was guilty of any "unfair trade practice". The appellant further contended that for grant of temporary injunction under Section 12-A "proof' of an "unfair trade practice" was required and also that such practice was likely to affect prejudicially public interest or the interests of D traders or consumers generally. Dismissing the appeal, this Court HELD: 1. The Order passed by the Commission was a purely discre- tionary order and was also an interim order pending the passing of a final order of temporary injunction and is not liable to be interfered with in the instant appeal. The Commission's order shows that it noticed that the appellant was relying upon opinions of experts to substantiate its claims of 102% superiority in anti-bacterial action while the respondent com- plainant was also relying upon opinions of its experts to contradict the appellant's claim. The matter being technical in nature, if the Commission felt, as suggested by the appellant in its reply, a panel of experts could go into the correctness of rival claims and give its opinion. After the opinion E F was given, parties could make their final submissions in the injunction application and if the Commission felt that till
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